Bulger’s lawyer, J.W. Carney Jr., argued in a petition for a writ of mandamus that U.S. District Court Judge Richard G. Stearns should be recused from overseeing the June 6 trial because of his prior employment as head of the U.S. Attorney’s Criminal Division in Boston and his close friendship with FBI Director Robert Mueller.

The defense intends to argue at trial that Bulger was granted immunity by the USAO to commit all of the crimes for which he is under indictment. Stearns denied Carney’s recusal request on two separate occasions last year, which prompted the filing of the 1st Circuit petition.

In addition to Souter, the panel included Chief Justice Sandra L. Lynch and Judge Bruce M. Selya. All three were extremely active, firing questions at lawyers on both sides.

The court didn’t have to grant Carney a hearing, so the fact that it did suggests it sees some validity to his argument. I talked to one experienced practitioner who said he expects the panel to order the judge’s recusal within 30 days. That would certainly cause a stir.

There was a full house in attendance for the oral arguments. The courtroom was so crowded that officials had to set up an overflow room next door and play the proceedings on video.

In a series of questions and answers between Souter and Carney, the Boston lawyer told the judge that the immunity agreement was entered into prior to Stearns’ arrival at the USAO in 1982. "You're the first person to get that out of me," Carney added.

Lynch had less success with Carney, who declined to tell her the precise time and date of the Bulger immunity agreement. "I reserve that detail until trial," he said.

Prosecutor Zachary R. Hafer told the panel that the defendant's evidence provided no basis for Stearns' recusal. He said the defense's "outlandish" immunity claim should not be enough to get a judge thrown off a case. "Judge Stearns has unequivocally stated that he had no knowledge of Bulger and never investigated him," Hafer said.

After the hearing, Carney spoke about why he believes such evidence from Stearns would still be relevant for the jury. "The failure to prosecute Mr. Bulger from 1982 to 1990 is corroborating that Mr. Bulger had immunity and people knew about it. One of the responsibilities of the chief of the criminal bureau is to be aware of who are the most serious criminals and initiate investigations and prosecutions of those persons. The question that I continue to ask is a question that will be answered at trial. If James Bulger were allegedly committing dozens and dozens of crimes, including murders, why wasn't he prosecuted?"

Selya shot down Hafer's argument that U.S. District Court Judge Mark L. Wolf presided over Bulger co-defendant Frank Salemme's case, even though Wolf, too, had a supervisory role in the USAO during the same time period. "But Salemme never sought [Wolf's] recusal," Selya said.

Selya said his concern was not with the media's coverage of the case, but with public confidence and the public's perception as to whether Bulger can get a fair trial. The outcome of the petition will turn in large part on how the panel answers that question.

It's worth noting that Stearns declined an invitation from the 1st Circuit to submit a response to the petition. While his hesitation is understandable, it's unfortunate that he chose not to weigh in. The name of the game is public perception. Who better to educate the public and lay out – in more detail than he did in his previous denials – all the reasons why he believes he should remain on the case?

The burden is on Carney to convince the court that recusal is required, and the panel came down hard on him for not having his client file an affidavit with specific details on when the immunity deal was made.

Carney countered that the case law is crystal clear that it is unnecessary to submit an affidavit in order to have a hearing on a motion to recuse a judge.

Carney also told the panel that the public interest in the case is overwhelming, and the evidence of corruption in federal law enforcement in the 1980s is well known.

"The opportunity to present the evidence that my client had immunity during this period and the reasons why he was not ever prosecuted has to be presented, and the trial must be overseen by a judge who is not connected to the most infamous period in federal law enforcement history in Boston," Carney said. "The integrity of our federal judicial process depends on it."

Carney listed for the court "six critical facts" that require the judge's recusal:1. Bulger was a notorious, well-known criminal in the 1980s;2. He was never prosecuted during that period;3. Hearings have shown there was immense corruption in the federal government;4. Bulger intends to present evidence that he had immunity;5. Stearns held leadership positions in the U.S. Attorney's Office from 1982 to 1990;6. In his decision denying recusal, the judge said he "was never aware of any investigation" into Bulger by anyone during that entire period.

Carney said the issue for the court to decide is whether a reasonable person knowing all six facts might have a doubt about whether Stearns can be fair and impartial. "These facts create an appearance that he might not be impartial presiding over this case," Carney said. "And for that reason, the federal statute mandates that he must recuse himself."

Carney said the judge's explanation about not knowing anything about Bulger during his tenure in the USAO flies in the face of experience and common sense.

After the hearing, Carney reiterated that Bulger will take the stand. "He will, in great detail, explain how it is was that he could be the most prominent criminal in Boston for decades and never, ever get prosecuted."

Even if the 1st Circuit sides with the government, Carney has created a whopper of an appellate issue.

As far as the June 6 trial date, Carney told the panel he and co-counsel Hank Brennan will be ready to go. "The trial date is set for June; we will be ready in June."For what it's worth, even a member of one of the alleged victims' families, Tom Donahue, said after the hearing that he was convinced by Carney's recusal arguments. "[Stearns] should step down," Donahue said. "Right now, it's not going to interfere with the trial or create any delays."

In a post-hearing press conference, I asked Carney which other judges could preside over the hearing if Stearns is ordered to step down. "Judge Stearns said in his order denying recusal that my arguments would preclude any other judge with experience in the [USAO] from sitting on this trial. I stated to the panel this morning that is not true. The arguments I have made apply solely to Judge Stearns. We would not move to recuse any other judge in this courthouse."

Food for thought: Wolf recently took senior status and is hearing only criminal cases at the Moakley Courthouse. Wouldn't his selection make things mighty interesting?

The court took the matter under advisement. Expect a decision sooner rather than later.Follow David Frank on Twitter @davidfrankmlw